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Future unknown for provider taking on contractors

PHILADELPHIA – A former HME provider’s bid to challenge a circuit court ruling that CMS contractors have “official immunity” from civil litigation is in limbo.

Dominic Rotella, owner of Nichole Medical Equipment, believes he had until Jan. 19 to appeal the decision of the U.S. Court of Appeals for the Third Circuit to the U.S. Supreme Court.

“I’ve had two problems,” he said. “I can’t move forward without a lawyer with Supreme Court experience, and I can’t move forward with a lawyer without funds.”

To date, Rotella—who says, “I don’t have any more financial resources”—has received $5,000 from The VGM Group, the first installment of a $25,000 commitment.

Rotella plans to speak with an attorney with Supreme Court experience to confirm whether or not he had to appeal within 90 days and, if that’s the case, to explore whether or not he can claim extenuating circumstances and apply for an extension.

“I plan to continue my campaign until Chief Justice John Roberts says there isn’t anything more that can be done,” he said.

At issue, Rotella says, is the circuit court’s decision to protect CMS contractors like auditors unilaterally, regardless of their actions.

“No matter what they do—whether or not they do it properly, correctly or legally—you can’t hold them liable for damages,” he said.

Rotella has been working his way through the court system since 2008, when the Medicare Appeals Council ruled that TriCenturion improperly audited Nichole Medical.